Samuel Willis 6 min read
On the 11th March 2022, the High Court gave its answer to the challenge brought by Reclaim These Streets against the Metropolitan Police (“MPS”) for its handling of the Sarah Everard vigil. In deciding against the MPS, the High Court has buttressed the fundamental rights to expression and assembly. The judgment confirms the need to conduct a proportionality assessment when interfering with qualified Convention rights applies to police operational decision-making, not just when deciding whether to prosecute or convict.
The tragic circumstances of the challenge are well-known. On the 3rd of March, Sarah Everard, a 33-year-old marketing executive, was kidnapped and murdered by a serving officer of the Parliamentary and Diplomatic Protection branch of the Metropolitan Police. The campaign group Reclaim These Streets planned to hold country-wide vigils on the 13th March. However, following several days of communicating with the Metropolitan Police, the group concluded that they would have to cancel the planned vigil at Clapham Common. This was because the Metropolitan Police could not guarantee the attendees would not be subjected to enforcement on the basis of the Covid regulations. The position of the Metropolitan Police was made clear in a press statement published on the 12th March:
“… the High Court has confirmed that the Metropolitan Police may conclude that attendance at a large gathering could be unlawful. In light of this ruling our message to those who were looking to attend vigils in London this weekend, is to stay at home or find a lawful and safer way to express your views.”
The claimants argued that the officers “adopted an interpretation of the Regulations that was legally wrong as it categorised the proposed vigil as “unlawful”, meaning criminal, merely because it contravened the restrictions on gatherings” (paragraph 4 of the judgment). On this basis, they further argued that the police (1) ignored the possibility that the fundamental rights to freedom of expression and freedom of assembly “might have provided a ‘reasonable excuse’ for contravening those restrictions on this occasion”, and (2) that the police had “failed to carry out the fact-specific proportionality assessment which they were duty-bound to conduct in order to reach a decision on that point”. Accordingly, the Metropolitan Police had unlawfully interfered with their Articles 10 and 11 ECHR rights by preventing, or at least discouraging, them from organising the vigil, doing so on grounds that were not “prescribed by law” (paragraph 4).
Against this, the defendant argued that “all her officers did was to point to the legal restrictions and the possibility that there might be enforcement action, depending on how things turned out”. She further argued that the real nature of the claimants’ complaint was that the police refused to “provide them with an assurance that they would not face enforcement action if the vigil went ahead”, and that the “police had no duty to provide such an assurance” (paragraph 6).
The High Court upheld the claim. Firstly, it identified the decisions that were being challenged. The challenged decisions consisted of statements made in meetings, in letters, and in a press statement, to the effect that the Covid-19 Regulations meant that the vigil would be unlawful (paragraphs 71 to 73). This in itself is an interesting point. It demonstrates that the statements made by public officials in the course of meetings, and in letters and press statements, can be subject to judicial review on the basis that they have had a “chilling effect” on the exercise of fundamental rights.
Next, the High Court found that those decisions had indeed interfered with their rights; they had had a “chilling effect”, contributing causally to the cancellation of the vigil (paragraphs 74-76). The question was whether such interference was unlawful. The Court found that the MPS failed to perform legal duty to consider whether the claimants might have a reasonable excuse for holding the vigil, or to conduct the fact-specific proportionality assessment required in order to discharge that duty (paras 77-102).
Interferences with qualified fundamental rights, such as freedom of assembly and speech, can be justified and therefore lawful. For such an interference to be lawful, it must be (a) prescribed by law, (b) made pursuant to a legitimate aim, (b) necessary in a democratic society, and (c) proportionate. The court did not assess the aims, necessity or proportionality of the MPS’s decisions. Instead, the case turned on whether the interference was prescribed by law, the first element of the test for lawful interference.
The Court concluded that the interference was not prescribed by law. The interference, therefore, could not be justified, and was unlawful. It found that the police had misunderstood the law and their duties under the law, and had accordingly communicated that misunderstanding of the law to the claimants. This communication had “chilled” the claimants from exercising their Convention rights: they were “induced [into] exercising self-restraint for fear of future investigation or prosecution” (paragraph 9).
The Police’s misconstruction of the law was that the claimants would be acting unlawfully by organising the vigil. As such, they would be exposed to criminal sanction under the Covid-19 regulations then in force. Unlike previous versions of the regulations, at that point in time the relevant regulations did not contain a specific exemption for protests.
There are two aspects to the Police’s misunderstanding of the law, substantive and procedural. Regarding the first, the Police were substantively mistaken as to the state of the law as it stood at the time. They did not recognise (nor did they consider) that the claimants had the benefit of the “reasonable excuse” of exercising their Convention rights. Only a few months earlier, in December 2020, the Court of Appeal in R (Dolan) v Secretary of State for Health and Social Care  EWCA Civ 1605 had confirmed that such a defence was available. The MPS were also mistaken in believing that the regulations created a blanket ban on all gatherings, regardless of the purpose of the gathering.
The MPS’s decisions had also been procedurally unlawful. For one, the Police had failed to take into account many of the proportionality factors that needed to be considered to make a decision as to the lawfulness of interfering with Convention rights. The Supreme Court confirmed and elaborated on this procedural principle in DPP v Ziegler  UKSC 23. The Police claimed that their refusal to do so was justified; to have done otherwise, they argued, would have been at odds with equal treatment and consistency. However, the High Court confirmed that assessing the importance of the cause at stake, and deciding to give it more or less weight, is not favouritism (paragraph 94). Such an assessment is central to conducting proportionality analysis for interferences with Articles 10 and 11. The key point is that an interference with Convention rights will not be “prescribed by law”, and therefore not lawful, if it has not been the subject of a full proportionality assessment. As the Court noted at paragraph 78, “no enforcement decision can lawfully be made without a proportionality assessment”.
One of the consequences of this case is that, subject to subsequent decisions of the Court of Appeal and Supreme Court, it seems the Ziegler test for proportionality binds the police at the operational level. Ziegler established the importance of assessing the Convention-compatibility of prosecutions and convictions. It appears, as a consequence of this decision, the Police will need to conduct a proportionality assessment, most likely using the factors set out by Lords Hamblen and Stephens JJSC at paragraphs 71 to 78 of Ziegler, when making operational decisions that would, or may, interfere with qualified HRA rights.
Three features of the judgment stand out. Firstly, a proportionality assessment would need to be more than a cursory consideration of the state of the law (or the assumption that the police operation in question was compatible because it was authorised by statute or statutory instrument). Secondly, it is clear that “exercising one’s Convention rights” now falls under the umbrella of the “reasonable excuse” defence. This is relevant for the offences in the Police, Crime, Sentencing and Courts Bill. Finally, the Court has confirmed that the Police must consider the stakes that underpin a gathering or protest. The Police will need to consider whether the protest or gathering in issue (i.e. a vigil) concerns a matter of public interest and concern or addresses an important matter of public policy. Interference with one’s right to protest is more likely to be lawful if one is protesting the range of choices at one’s workplace cafeteria than if one is protesting against the presence of a statue of a slave owner in one’s neighbourhood.